B-131119, MAR. 15, 1960

B-131119, MAR. 15, 1960

TO HONORABLE WARREN OLNEY, III, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

ON FEBRUARY 9, 1960, THE ASSISTANT DIRECTOR REQUESTED OUR OPINION CONCERNING THE BEGINNING DATES OF THE ANNUITIES WHICH ARE PAYABLE BY YOUR OFFICE TO WIDOWS AND SURVIVING DEPENDENT CHILDREN OF UNITED STATES JUDGES PURSUANT TO THE SO-CALLED "JUDICIAL SURVIVORS ANNUITY ACT," CITING 28 U.S.C. 375 AND 376.

AS SECTION 375 CONCERNS ONLY THE WIDOWS OF JUSTICES OF THE SUPREME COURT OF THE UNITED STATES, THAT SECTION HAS NO MATERIAL BEARING UPON THE SPECIFIC QUESTIONS PRESENTED, AS SET FORTH BELOW.

SECTION 376 ENACTED AUGUST 3, 1956, PUBLIC LAW 973, 70 STAT. 1021, PROVIDES ANNUITIES TO WIDOWS AND SURVIVING DEPENDENT CHILDREN OF JUDGES OF THE UNITED STATES COURTS DESCRIBED IN SUBSECTION 376 (Q). SUBSECTION 376 (G), IN PERTINENT PART, IS AS FOLLOWS:

"/1) IF SUCH JUDGE IS SURVIVED BY A WIDOW BUT NOT BY A DEPENDENT CHILD, THERE SHALL BE PAID TO SUCH WIDOW AN ANNUITY BEGINNING WITH THE DAY OF THE DEATH OF THE JUDGE OR FOLLOWING THE WIDOW'S ATTAINMENT OF THE AGE OF FIFTY YEARS, WHICHEVER IS THE LATER * * *; OR

"/2) IF SUCH JUDGE IS SURVIVED BY A WIDOW AND A DEPENDENT CHILD OR CHILDREN, THERE SHALL BE PAID TO SUCH WIDOW AN IMMEDIATE ANNUITY * * * AND THERE SHALL ALSO BE PAID TO OR ON BEHALF OF EACH SUCH CHILD AN IMMEDIATE ANNUITY * * *; OR

"/3) IF SUCH JUDGE LEAVES NO SURVIVING WIDOW OR WIDOWER BUT LEAVES A SURVIVING DEPENDENT CHILD OR CHILDREN, THERE SHALL BE PAID TO OR ON BEHALF OF EACH SUCH CHILD AN IMMEDIATE ANNUITY * * *.'

THE ASSISTANT DIRECTOR'S LETTER ADVISES THAT YOUR OFFICE HAS INTERPRETED AND UNIFORMLY APPLIED LITERALLY THE LANGUAGE OF SUBSECTION 376 (G) (1) TO MEAN THAT THE DAY OF DEATH IS INCLUDED AS THE FIRST DAY FOR WHICH THE ANNUITY IS PAYABLE. THE RESULT IS A ONE DAY OVERLAP OF PAYMENTS OF BOTH THE JUDGE'S SALARY AND THE WIDOW'S ANNUITY. WE CONCUR IN THAT INTERPRETATION.

HOWEVER, FOR GUIDANCE IN FUTURE CASES ARISING UNDER THE ABOVE-QUOTED PROVISIONS OF SECTION 376, OUR OPINION IS REQUESTED UPON THE FOLLOWING QUESTIONS:

"1. ARE WE CORRECT IN INTERPRETING THE PHRASE IN 28 U.S.C. 376 (G) (1),"BEGINNING WITH THE DAY OF THE DEATH OF THE JUDGE," TO MEAN THAT THE DAY OF DEATH SHALL BE INCLUDED IN COMPUTING THE ANNUITY PAYMENTS?

"2. * * * ASSUMING THAT IN ANSWER TO QUESTION ONE ABOVE YOU ARE OF THE OPINION THAT THE DAY OF DEATH SHOULD BE INCLUDED IN THE ANNUITY PAYMENT UNDER 28 U.S.C. 376 (G) (1), SHOULD THAT DAY ALSO BE INCLUDED IN COMPUTING THE PAYMENT UNDER 28 U.S.C. 376 (G) (2) AND (3/? "

THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 3, 1956, DOES NOT SUPPLY ANY INFORMATION SUGGESTING THAT THE BEGINNING DATES OF ALL THREE CATEGORIES OF SUCH ANNUITIES (376 (G) (1), (2), AND (3) ( SHALL NOT UNIFORMLY INCLUDE THE DATE OF DEATH OF THE JUDGE. SEE THE TRANSCRIPT OF THE HEARINGS BEFORE SUBCOMMITTEE NO. 5 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, 84TH CONGRESS, 2D SESSION, ON H.R. 6974 AND RELATED BILLS, FOR WHICH THE SUBSTITUTE BILL H.R. 11124 WAS ENACTED. THE COMMITTEE'S COMMENTS (HOUSE REPORT NO. 2170) DO NOT IMPART TO THE ABOVE- QUOTED LANGUAGE OF SUBSECTIONS 376 (G) (1), (2), AND (3) A MEANING OTHER THAN THAT WHICH REASONABLY MAY BE GATHERED FROM THE CONTEXT THEREOF. THE WORD "IMMEDIATE" USUALLY MEANS STANT," NOT SEPARATED BY TIME, UNLESS THE CONTEXT AND CIRCUMSTANCES REQUIRE A DIFFERENT MEANING. AS USED IN SUBSECTIONS (G) (2) AND (G) (3) WE UNDERSTAND THE WORD "IMMEDIATE" TO BE USED IN OPPOSITION TO THE DEFERRED ANNUITIES PROVIDED IN SUBSECTION (G) (1) FOR WIDOWS WHO HAVE NOT ATTAINED THE AGE OF FIFTY YEARS.

IN THE ABSENCE OF CLEAR CONGRESSIONAL INTENT TO THE CONTRARY WE SEE NO REASON WHY ANNUITIES OF BENEFICIARIES UNDER SUBSECTIONS (G) (2) AND (G) (3) SHOULD BEGIN ON AN EFFECTIVE DATE OTHER THAN THE EARLIER DATE PROVIDED IN SUBSECTION (G) (1). THEREFORE, BOTH OF THE ABOVE-QUOTED QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.